https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3044

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELCA NO. E009 OF 2022** **BERNARD MWAI MUNENE …………………………………… APPELLANT** **VERSUS** **ROBERT KUNGU …………………………………………… RESPONDENT** **JUDGEMENT** ***(Being an appeal against the ruling of Hon. D.M. Ireri, SPM, delivered on 20th April 2022 in Baricho in SPMCC No. 188 of 2015)*** 1. This appeal arises from the ruling of **Hon. D.M. Ireri, SPM,** delivered on **20th April 2022** in **Baricho Civil Suit No. 188 of 2015**, dismissing the Appellant’s application dated 20th December 2021 with costs, on the basis that it sought to reopen a matter that had been settled in the year 2019. 2. Aggrieved by that decision, the Appellant lodged the present appeal vide a Memorandum of Appeal dated 9th May 2022. The appeal is premised on the following four (4) grounds that the learned trial magistrate erred in law and fact: 3. In his interpretation and exercise of judicial jurisdiction, particularly in denying police security and supervision. 4. In denying what is described as the principal remedy sought, thereby rendering the judgment of the court ineffective, academic, and an exercise in futility. 5. In the exercise of judicial discretion, allegedly in a biased and partisan manner, leading to an erroneous finding. 6. In arriving at findings and conclusions said to be extraneous and not supported by the record*.* The Appellant prays that the ruling and order of 20th April 2022 be set aside and that the application dated 20th December 2021, particularly the prayer for resurvey, be allowed with costs. 1. The dispute before the lower court culminated in a judgment delivered on 3rd September 2019, in which the court issued, inter alia, orders directing that **Land Parcel No. Kiine/Sagana/1621** be subjected to a re-survey within three months, the costs thereof to be borne by the Plaintiff (now Appellant). A temporary order was also issued restraining the Defendant from undertaking permanent developments on one acre comprised in **Parcel No. Kiine/Sagana/4774** pending the said re-survey. 1. Following that judgment, the Appellant filed an application in the trial court dated 20th December 2021. In the application, he mainly requested interim orders for the removal of a fence allegedly built by the Respondent that is blocking his access road and compound gate. He also asked for police supervision by the OCS Sagana Police Station during the fence removal. Additionally, he sought an order requiring the Respondent to remove the perimeter fence at their own expense, pending a re-survey to determine the location of the Respondent’s one-acre parcel identified as **Kiine/Sagana/4774**, along with other related orders to protect the property. 1. The application was grounded on the supporting affidavit of the Appellant, who deponed that following the judgment of the court, he discovered that the original **Parcel No. Kiine/Sagana/1621** had been subdivided into **Parcels Nos. 4774, 4775, and 4776**, allegedly without his participation and fraudulently. He averred that he had not sought cancellation of the resultant titles but had consistently sought a re-survey of the original parcel. He further stated that he had engaged a surveyor who confirmed that a re-survey was feasible, and that a search conducted on 18th November 2021 confirmed the closure of the green card for **Parcel No. 1621** upon its subdivision. On that basis, he urged the court to grant temporary orders for the removal of the fence pending resolution of the dispute, and to issue directions to resolve the stalemate. 1. The application was opposed through grounds of opposition dated 11th January 2021. However, the learned magistrate observed that the said grounds raised matters of fact unsuitable for determination through a notice of grounds of opposition and consequently disregarded them. The Respondent did not challenge that course. 2. Upon consideration of the application and the parties’ submissions, the learned magistrate dismissed the application on the basis that the matter had already been conclusively determined. The court found that its earlier judgment had issued clear and time-bound orders requiring a re-survey of **Parcel No. Kiine/Sagana/1621**, alongside a temporary restriction against development on **Parcel No. Kiine/Sagana/4774** pending that exercise. It noted that the timelines granted, including an additional 30 days, had lapsed without compliance, and consequently, the temporary restriction could no longer subsist. 3. The court further held that the Appellant had failed to undertake the re-survey as directed and had not provided sufficient justification for that failure. Crucially, the learned trial magistrate found that the application introduced new matters, particularly the alleged erection of a fence blocking an access road. In the court’s view, these constituted a fresh cause of action which could not be litigated within a concluded suit through a post-judgment application. 4. The court emphasized that, following judgment, parties are required to proceed to execution of the decree rather than reopening the dispute. It was observed that any alleged disobedience of court orders ought to be addressed through appropriate proceedings, such as contempt, and not through the present application. 5. Finally, the court declined to grant orders for police supervision, finding no sufficient basis for involving the police in what it considered to be a civil dispute. On that basis, the application was dismissed with costs. 6. The court issued directions on 13th November 2024, 19th March 2025 and 21st July 2025 on filing and exchanging submissions. The Appellant relied on his written submissions dated 3rd June 2025. As of today the 20th May 2026, the Respondent had not filed any submissions. The Appellant relied on his written submissions dated 3rd June 2025. 1. The learned Counsel for the Appellant submitted inter alia that the application dated 20th December 2021 sought purely administrative and facilitative orders intended to give effect to the final judgment of the court. In particular, it was argued that the orders for removal of the impugned perimeter fence and for police supervision were necessary to enable the re-survey of the land as decreed by the court. 2. It was further submitted that the trial court erred in dismissing those orders, thereby frustrating execution of the judgment. Counsel contended that the effect of the impugned ruling was to render the decree incapable of implementation, thus defeating the very purpose of the judgment. 3. Counsel argued that the ruling departed from, and was inconsistent with, the final judgment and decree, thereby creating confusion in the matter. It was contended that the court effectively introduced contradictory positions regarding the responsibility and process of undertaking the re-survey. 4. The Appellant maintained that no re-survey had been undertaken, and that the alleged erection of a fence had denied him access to his home, thereby undermining the substance of the judgment. In that regard, it was submitted that the judgment risked being rendered nugatory if facilitative orders were not granted. 5. Counsel emphasized that the original judgment itself was not under challenge. Rather, the appeal was directed at ensuring its proper implementation, specifically through a re-survey to be undertaken by the appropriate authority, including the County Land Surveyor, to isolate the Respondent’s one acre. 6. The issues arising in this appeal for the court’s determination are as follows: 1. *Whether the application dated 20th December 2021 was a proper invocation of the court’s jurisdiction in execution of the judgment and decree;* 2. *Whether the application sought to introduce new matters outside the scope of the concluded suit.* 3. *Who pays the costs*? 7. The court has considered the grounds on the memorandum of appeal, record of appeal, submissions by the learned counsel, and come to the following conclusions: 1. As this is a first appeal, the duty of this Court is to re-evaluate the evidence afresh and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. This principle was stated in ***Selle & Another versus Associated Motor Boat Co. Ltd & Others [1968] EA 123***, where the Court of Appeal held: ***“This Court is not bound necessarily to accept the findings of fact by the court below. An appeal to this Court is by way of retrial… this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** * 1. The starting point in this appeal is the judgment delivered on 31st July 2019, and the resultant decree issued on 3rd September 2019. In that judgment, the trial court resolved the dispute between the parties by, inter alia: 1. *affirming that the Respondent was entitled to one acre out of the original parcel No. Kiine/Sagana/1621;* 2. *Issuing a temporary restraint against permanent developments on the said one acre comprised in parcel No. Kiine/Sagana/4774 pending re-survey, and* 3. *Directing that parcel No. Kiine/Sagana/1621 be re-surveyed within three (3) months, at the cost of the Appellant.* The structure of the decree was clear and time-bound. The temporary restriction on development was expressly tied to and contingent upon the undertaking of the re-survey within the stipulated period. The obligation to initiate and facilitate that process was placed upon the Appellant. * 1. It is not in dispute that the re-survey directed by the court was not undertaken within the three months provided in the judgment. The record further shows that the trial court, on 3rd November 2021, granted an additional thirty (30) days to facilitate compliance. That period too lapsed without the re-survey being carried out. 2. In those circumstances, the temporary restraint against development, being conditional and time-bound, could not subsist indefinitely. The learned magistrate cannot be faulted for finding that, upon lapse of the timelines, there was no legal basis to continue restraining the Respondent from dealing with his parcel of land. 3. The Appellant’s position, as gleaned from the record, is that the failure to undertake the re-survey was attributable to the subdivision of the original parcel into **Nos. 4774, 4775, and 4776.** However, that explanation does not alter the character of the decree, which imposed a clear obligation within a defined period. The decree was not varied, reviewed, or set aside. 4. The Court must then consider whether the orders sought in the impugned application were incidental to execution of the decree or whether they introduced new and substantive issues. The application sought for inter alia: 1. *Removal of a perimeter fence allegedly blocking access to the Appellant’s home;* 2. *Police supervision in the enforcement of such removal; and* 3. *Directions relating to re-survey in light of the alleged subdivision of the original parcel.* While the Appellant has characterized these as administrative or facilitative orders, a closer examination reveals that they raised matters that were neither determined nor contemplated in the judgment. * 1. In particular, the question whether the Respondent had erected a fence blocking an access road, and the legality or propriety of such action, was not an issue adjudicated upon in the judgment. It introduces a distinct factual controversy requiring evidentiary interrogation. This matter, in the view of this Court, goes beyond the mechanics of execution and instead amounts to fresh causes of action. 2. It is trite that once a court has rendered a final judgment, its role is limited to the enforcement of the decree in accordance with the law. Parties are expected to take steps towards execution through the prescribed legal processes. In the present case, the decree required a re-survey within a defined timeline, with the Appellant bearing the costs. The record does not demonstrate that the Appellant invoked the available mechanisms for execution of that decree. Instead, he approached the court with an application introducing new grievances and seeking substantive relief not anchored in the judgment. * 1. The argument advanced by the Appellant, that the orders sought were necessary to facilitate execution, has been carefully considered. While courts ought not to issue decrees incapable of execution, any difficulty in execution must be addressed within the framework of the decree and the law governing execution. It cannot serve as a basis for reopening the merits of the dispute or introducing new claims through a post-judgment application. 2. The prayer for police supervision was not grounded in any subsisting court order requiring enforcement by coercive means. No sufficient basis was laid to warrant the police’s involvement in what remains a civil dispute. The learned trial magistrate, therefore, properly exercised his discretion in declining that prayer. 3. This being an appeal against the exercise of judicial discretion, this Court will not interfere unless it is shown that the learned trial magistrate misdirected himself in law, or took into account irrelevant considerations, or failed to consider relevant matters, or arrived at a plainly wrong decision. From the foregoing analysis, the learned trial magistrate correctly appreciated: 1. The finality and terms of the judgment and decree; 2. The lapse of the timelines set for compliance; 3. The distinction between execution and re-litigation; and 4. The nature of the application as introducing new matters*.* No misdirection or improper exercise of discretion on the part of the learned trial magistrate has been demonstrated, by the appellant. * 1. Accordingly, this Court finds that the application dated 20th December 2021 did not constitute a proper step in execution of the judgment and decree, but instead sought to introduce new matters, outside the scope of the concluded suit. The learned trial magistrate was therefore correct in dismissing it. 2. Under **Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya**, costs follow the event unless otherwise ordered by the court on good grounds. As the appellant has lost in the appeal, I find no grounds why he should not pay the respondent’s costs. 1. In view of the above conclusions on the various issues raised in this appeal, the court finds and orders as follows: 1. **That the appeal is devoid of merit and is dismissed in its entirety.** 2. **The learned trial magistrate’s ruling delivered on 20th April 2022 and the decree arising therefrom is hereby affirmed.** 3. **The appellant will pay the respondent’s costs in the appeal.** Orders accordingly**.** **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 21ST DAY OF MAY 2026**. **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Appellant – No Appearance Respondent – No Appearance Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**